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Tutt v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 21, 2017
No. 06-16-00213-CR (Tex. App. Jun. 21, 2017)

Opinion

No. 06-16-00213-CR

06-21-2017

OBIE EARL TUTT, II, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 115th District Court Upshur County, Texas
Trial Court No. 17369 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION

In a four-count indictment, the State alleged that Obie Earl Tutt, II, intentionally or knowingly (1) committed aggravated sexual assault of Jane Doe, a child under fourteen years of age, by penetrating her sexual organ with his finger, (2) committed aggravated sexual assault of Doe, a child under fourteen years of age, by causing her sexual organ to contact his mouth, (3) committed indecency with a child by sexual contact by touching the genitals of Doe, a child under seventeen years of age, and (4) committed indecency with a child by causing Doe, a child under seventeen years of age, to contact his genitals.

Tutt pled guilty to Counts I and III. A jury found Tutt guilty of the remaining counts, and Tutt was (1) sentenced to sixty years' imprisonment and ordered to pay a $10,000.00 fine on Count I, (2) sentenced to thirty-five years' imprisonment and ordered to pay a $10,000.00 fine on Count II, (3) sentenced to twenty years' imprisonment and ordered to pay a $5,000.00 fine on Count III, and (4) sentenced to fifteen years' imprisonment and ordered to pay a $5,000.00 fine on Count IV. The trial court further ordered the sentences in Counts II and IV to run consecutively.

On appeal, Tutt raises three points of error which mirror those raised in companion cause number 06-16-00212-CR. First, Tutt argues that the evidence is insufficient to sustain the jury's findings of guilt on Count II and Count IV because Doe was an accomplice and her testimony was not corroborated. Second, he argues that the trial court erred in failing to submit an accomplice witness instruction. Third, he argues that in the event we sustain his point of error, the order to cumulate the sentences must also be set aside. We addressed these issues in detail in our opinion of this date on Tutt's appeal in cause number 06-16-00212-CR. For the reasons stated therein, we likewise conclude that Tutt's first three points of error must be overruled.

In the companion case, Tutt appealed his convictions for two counts of indecency with a child.

As to Count II, Doe testified that Tutt placed his mouth on her sexual organ. As to Count IV, Doe testified that Tutt grabbed her hand and placed it on his genitals.

Tutt also argues a final point of error unique to this appeal. In his final point, Tutt contends that double jeopardy was violated when he was convicted of both Count I and Count III because Count III's allegation—that Tutt touched Doe's genitals—was subsumed within the Count I allegation that he penetrated her sexual organ with his finger. We find this last point of error unpreserved.

The Texas Court of Criminal Appeals has explained that

because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal . . . when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.
Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). Yet, a timely objection is generally required to preserve error for review. See TEX. R. APP. P. 33.1. Accordingly, where error is not apparent on the face of the record, the issue is waived. Gonzalez, 8 S.W.3d at 643; see McCrary v. State, 327 S.W.3d 165, 171 (Tex. App.—Texarkana 2010, no pet.); King v. State, 161 S.W.3d 264, 267 (Tex. App.—Texarkana 2005, pet. ref'd).

Tutt pled guilty to Counts I and III. At trial, Doe testified that Tutt rubbed her genitals and also penetrated her sexual organ. She also told the jury that Tutt had sexually abused her "[a]bout twice a month" over the course of two years. Doe added that Tutt touched her "[s]ometimes in the living room" and at other times in her room. When asked whether she saw Tutt's genitals during these occurrences, Doe answered, "[S]ometimes." In light of this evidence, we cannot conclude that the act alleged in Count III was subsumed within the act alleged in Count I.

"Because [Tutt's] alleged double jeopardy violation is not clearly apparent on the face of the record, and because requiring him to have timely raised this alleged violation at the trial court level serves legitimate state interests," we find Tutt's last point of error unpreserved. King, 161 S.W.3d at 269. It is overruled.

We affirm the trial court's judgment.

Bailey C. Moseley

Justice Date Submitted: May 19, 2017
Date Decided: June 21, 2017 Do Not Publish


Summaries of

Tutt v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 21, 2017
No. 06-16-00213-CR (Tex. App. Jun. 21, 2017)
Case details for

Tutt v. State

Case Details

Full title:OBIE EARL TUTT, II, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Sixth Appellate District of Texas at Texarkana

Date published: Jun 21, 2017

Citations

No. 06-16-00213-CR (Tex. App. Jun. 21, 2017)